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Russell v Queensland Racing Integrity Commission

 

[2020] QCAT 329

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Russell v Queensland Racing Integrity Commission [2020] QCAT 329

PARTIES:

Darren Russell

(applicant)

v

Queensland Racing Integrity Commission

(respondent)

APPLICATION NO/S:

OCR356-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 September 2020

HEARING DATE:

21 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

  1. The Internal Review decision of the Queensland Racing Integrity Commission dated 1 November 2019 is set aside.
  2. A decision is substituted that:
    1. (a)
      Darren Russell breached Greyhounds Australasia Rule 86(q) on 6 September 2019.
    2. (b)
      Darren Russell is suspended for three months with one month wholly suspended for twelve months, commencing one month after the date of this order.
    3. (c)
      If Darren Russell engages in any conduct for which a contravention of Greyhounds Australasia Rule 86(q) is found and a penalty imposed during the period of suspension, the period of suspension will immediately be re-activated and the suspension will be served in full.  The matters which are the subject of any new charge will be treated and dealt with as a separate proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where a licensed trainer involved in a physical altercation with another trainer on a public race course – charge of breach of Greyhounds Australasia Rule 86(q) – penalty

Greyhounds Australasia Rules, Rule 86(q)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Racing Integrity Act 2016 (Qld), s 246

Auld v Queensland Racing Ltd [2013] QCAT 446

Briginshaw v Briginshaw (1938) 60 CLR 336

El-Issa v Racing Queensland Limited [2011] QCATA 280

APPEARANCES & REPRESENTATION:

Applicant:

T Fuller, Gadens Lawyers

Respondent:

S McLeod QC instructed by M Johnston in-house lawyer Queensland Racing Integrity Commission

REASONS FOR DECISION

  1. [1]
    Mr Russell is a licensed greyhound trainer. On 3 October 2019 he was found guilty of a charge pursuant to Greyhounds Australasia Rule 86(q).
  2. [2]
    Mr Russell sought an internal review of that decision. He now seeks a review of the internal review decision made 1 November 2019, which confirmed the original decision and penalty of six months’ suspension with three months wholly suspended for twenty-four months.
  3. [3]
    This Tribunal is given jurisdiction to externally review decisions of the respondent by section 246 of the Racing Integrity Act 2016 (Qld). By section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the purpose of the review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits.
  4. [4]
    The charge is set out in the Transcript of the Stewards’ Inquiry as:

…you have a charge to answer under Greyhounds Australasia Rule 86(q)

A person, including an official, shall be guilty of an offence if a person commits or omits to do any act or engages in conduct which in any way is detrimental or prejudicial to the interest, welfare, image, control or promotion of greyhound racing.

The stewards are of the opinion that on 6 September 2019 at the Ipswich Greyhound Race Club meeting that you engaged in violent conduct which was detrimental to the interest, image and promotion of greyhound racing.[1]

  1. [5]
    The uncontested facts are that on 6 September 2019 Mr Russell was present at the Ipswich Greyhound Race Club. Mr Russell became involved in a verbal altercation with another trainer present at the Club, Mr Crick, which escalated to a physical fight between the two and resulted in charges against both men.
  2. [6]
    The fight occurred in a public area and was witnessed by members of the public.

Evidence

  1. [7]
    At the hearing Mr Russell relied upon the evidence given by him at the Stewards’ Inquiry.
  2. [8]
    Mr Russell tendered a short statement from Owen Sweeney, undated.[2] Mr Sweeney was not called to give evidence. Senior Counsel for the respondent objected to the final sentence in Mr Sweeney’s statement on the basis that it is mere speculation. I accept that objection and have accorded no weight to Mr Sweeney’s statement.
  3. [9]
    Mr Russell tendered a character reference from Luke Gatehouse, Chief Executive Officer of the Brisbane Greyhound Racing Club, dated 30 June 2020 to which I have had regard.[3]
  4. [10]
    Mr Russell tendered a further character reference from John Catton, President of the Capalaba Greyhound Racing Club, dated 1 July 2020.[4] Senior Counsel for the respondent objected to paragraph 2 of the reference on the basis that it swears to the issue and contains an irrelevancy. Mr Russell’s solicitor did not press for the sentences the subject of the objection to remain in evidence. I have had regard to the reference, but not to the first two sentences and the last sentence of  paragraph 2.
  5. [11]
    The respondent tendered the documents filed pursuant to s 21(2) of the QCAT Act.[5]
  6. [12]
    The evidence which I consider relevant on a fresh consideration on the merits is:
  1. (a)
    Ms Caldwell, sample collection officer, is a witness to the events in question. She was questioned by the Stewards on 6 September. Ms Caldwell referred to a verbal exchange between Mr Russell and Mr Crick. Her evidence to the Stewards was that she did not hear the words used, but did hear Mr Crick say to Mr Russell:

Oh, why don’t you repeat that to my face?

Her evidence continued:

And he must have muttered the same thing, I don’t – I couldn’t hear what he said. So then he just marched up and got in his face.

Mr Crick got into Darren’s face, but Darren sort of met him as well, so. And he was just egging him on, I think.  And then I had the door open, so I was calling out for Kerrie to get you guys, because I thought they were – there’d be a bit of barney, and then I missed who did the first punch, but they were here.  They both met each other, and Darren was egging them on the whole time as well, so.[6]

Later Ms Caldwell described Mr Russell’s posture:

So when Mr Crick walked up, Darren was waiting for him, still talking, whatever he was saying, and then so he puffed up and then…

Shoulders up, arms out.

Ms Caldwell agreed with the Chairman that it was an aggressive manner.

She continued:

And then as Mr Crick walked up because he was – it’s steps, they got up really, really close, and that’s when I turned around and called out for (indistinct) to get you guys. So I don’t know who made the first punch, but…[7]

In response to a question as to whether Ms Caldwell saw a physical altercation between the two, Ms Caldwell said:

Punching? Yeah, yeah, yeah. So I saw them both punch each other in the face, and then they both had each other over the rail. Yeah, full on. But I don’t know who did the first punch.[8]

  1. (b)
    Mr Crick told the Stewards on 6 September 2019 that there was a verbal exchange between he and Mr Russell after Mr Russell called him a “fuckwit”. Mr Crick followed Mr Russell asking: “Who are you calling a fuckwit?” Mr Russell responded: “You, you fuckwit”.
  2. (c)
    Mr Crick alleges Mr Russell pushed him in the chest and a fight ensued.
  3. (d)
    On 6 September Mr Russell gave evidence to the Stewards. He asserts that the altercation started when Mr Crick said something to him, to which Mr Russell responded: “Don’t be a smartarse.” After that Mr Crick followed him and “come right up in my face”.[9]
  4. (e)
    The following exchange occurred with the Chairman:

Chairman: What happened then? How did the physical altercation…

Applicant: Oh, well he was right in my face, so.

Chairman: How did the physical altercation occur?

Applicant: Well he just come right up in my face. I said, “Get away.”

Chairman: Right, so pushed him?

Applicant: I just said, “Get away”.

Chairman: Did you put your hand on him?

Applicant:  I can’t remember , Kev.

Chairman: He says initially that you punched him into the chest, then he recanted that by saying it’s a push. When questioned about that he said, “Well, push, punch.” Do you recall touching his chest?

Applicant: Just a push, maybe.  I said, “Get out of the way.”

Chairman: Did Mr Crick get physical with you?

Applicant: Well we both got a bit physical then, so he started throwing a few punches. I was just – and I started punching him.  Once he started throwing punches, that when I – I started throwing punches too.  I think I’m entitled to.

Chairman: Mr Crick says to us that he believes that he was defending himself from you. What would you say to that?

Applicant: Well I wasn’t the bloke that walked 30 Metres and got in my face. So who was the aggressor?

Chairman: Were you happy to accommodate him?

Applicant: Bloody oath, I was. Sorry, but you know…No one’s going to be standing over me.

Chairman: …But I don’t believe the evidence is disputing the fact there was a physical altercation between the two of you. Is that…

Applicant: No, I’m not disputing that at all. I can’t – you’re entitled to defend yourself.

Chairman: And you took exception to him…

Applicant: Yes

Chairman: …getting in your face.  It would be fair to say if someone’s in your face, you would be more likely to either push, whatever, get him out of your face.  Would that be a fair say?

Applicant: I think anyone’s entitled to do that.

Chairman: Yes, but is that what happened here today?

Applicant: Yes

[10]

  1. (f)
    At the Stewards’ Inquiry on 3 October 2019, Mr Russell disputed calling Mr Crick a “fuckwit”. He says that he said: “Don’t be a smartarse” and that when Mr Crick followed him “chirping and going and going” Mr Russell said: “Don’t be a fuckin’ smart arse”. I note that the words Mr Russell says he used are recalled by another witness Mr Gladman who gave evidence on 6 September 2019.[11]
  2. (g)
    Mr Russell also gave background to his state of mind prior to the altercation with Mr Crick. He says that he was “agitated” because of a decision of the Stewards to disallow the use of barking muzzles on his dogs on that day. Mr Russell denied that he took out his frustration on Mr Crick.  He maintained that he pushed Mr Crick away when he got in his face. Mr Russell says that Mr Crick attacked him after that.
  3. (h)
    At the 3 October 2019 hearing Mr Crick denied being close to Mr Russell’s face. He denied being the instigator of the altercation.

Submission

  1. [13]
    Mr Russell submits that:
    1. (a)
      His involvement in the fight was self defence when Mr Crick became aggressive and made a menacing approach into his personal space.
    2. (b)
      The Stewards should not have taken into account his state of mind and attributed the altercation to his state of mind. He says that he did not know the Stewards would do so and did not have an opportunity to prepare a response.
    3. (c)
      The Stewards should not have concluded that his conduct was a consequence of the Stewards’ decision in relation to the use of muzzles. That conclusion affected their decision and amounted to bias.
    4. (d)
      He was not involved in a “violent” assault as found by the Stewards. To make such a finding the Stewards were bound to apply a higher standard of proof on the Briginshaw test.[12]
    5. (e)
      He does not dispute that there has been a breach of the Rule, however, he disputes the conduct said to bring the industry into disrepute. Mr Russell rejects the characterisation of what occurred as a “violent assault”.

Findings

  1. [14]
    I accept Mr Russell’s evidence as to the words used by him to Mr Crick. The words used are confirmed by an independent witness. I find however that the words were no less rude or offensive than the words Mr Crick attributes to Mr Russell.
  2. [15]
    I accept Mr Russell’s evidence that his agitated state of mind was not a motivator to take out his feelings on Mr Crick by physical violence. However, it is reasonable to infer that Mr Russell’s state of mind was an explanation for the verbal exchange between he and Mr Crick.
  3. [16]
    I do not consider there is any evidence to justify a finding that the Stewards were biased towards Mr Russell because of his reaction to their decision in relation to the use of muzzles on the day. The Stewards have conducted a fair inquiry giving Mr Russell a full opportunity to provide his version of events. The finding that the charge was made out was reasonably available on the facts as found. In any event this matter proceeds as a review, not an appeal from the Internal Review of the Stewards’ decision.
  4. [17]
    On the basis of Ms Caldwell’s evidence I find that:
  1. (a)
    Mr Russell was a willing participant in the altercation with Mr Crick and that he helped fuel the aggression between the two by maintaining a verbal exchange;
  2. (b)
    Mr Crick came very close to Mr Russell’s face.
  3. (c)
    Mr Russell was ready to fight with his shoulders up and arms out.
  4. (d)
    Mr Russell threw punches at Mr Crick during the course of the fight.
  5. (e)
    Both men punched each other in the head.
  1. [18]
    On the basis of Mr Russell’s evidence, I find that:
    1. (a)
      He pushed Mr Crick in the chest and that was the first blow struck in the fight.
    2. (b)
      He was prepared to engage in a fight rather than be “stood over” by Mr Crick.
  2. [19]
    Because of these findings I do not consider Mr Russell was acting in self-defence. I find that he was a willing and active participant in the physical fight which occurred. I accept that there was an element of provocation involved when Mr Crick followed Mr Russell and stood very close to him. Likewise, I consider that Mr Russell’s intemperate language (accepting his version as to the words used) helped to incite Mr Crick’s conduct. I do not consider that Mr Crick’s conduct was such that Mr Russell had no option but to engage in a physical fight to defend himself. It is relevant that Mr Russell pushed Mr Crick and that was the first physical contact between the two. At any time during the engagement between Mr Crick and Mr Russell the altercation could have been defused by self-control and restraint in language and conduct. That did not occur on the part of either man.
  3. [20]
    As to Mr Russell’s objection to a categorisation of the fight as a “violent” assault, I note that the particular of the charge related to “violent conduct”. Violent is defined in the Macquarie Dictionary as: “acting with or characterised by uncontrolled, strong, rough force…”[13]
  4. [21]
    On the basis of Ms Caldwell’s description of the fight, with both men punching each other in the head, I find that violent conduct occurred.
  5. [22]
    For the reasons set out in my findings I have the requisite degree of comfort that Mr Russell engaged in violent conduct when he participated in a fight with Mr Crick on 6 September 2019.[14]
  6. [23]
    I accept that violent conduct which occurs on a public racecourse is detrimental or prejudicial to the interest, welfare, image, control or promotion of greyhound racing. I find that the charge is made out.

Penalty

  1. [24]
    Mr Russell submits that the penalty imposed was severe in the circumstances. He submits that his sole source of income is from his work as a trainer. He is responsible for the care of his elderly parents and that he will suffer hardship because of the suspension of his licence.
  2. [25]
    Mr Russell submits that a financial penalty is the only penalty warranted and the penalty should be consistent with his financial situation. I note that there is no evidence before me as to Mr Russell’s financial position, although obviously he will lose his income as a trainer during the period of any suspension.
  3. [26]
    Mr Russell submits that precedents for penalties imposed as a result of breach of Rule 86(q) are shown to be fines ranging from $200 to $1,000. The difficulty with the list of precedents referred to in the s 21(2) documents is that it is unknown what the factual basis for the fine has been. I have not been taken to any of the decisions so that I can determine if like circumstances exist.
  4. [27]
    The task of imposing a penalty involves a balance between the severity of the offence, the need for deterrence, and any mitigating factors.[15]
  5. [28]
    Physical fighting is a serious matter. It must be discouraged and others must be deterred from engaging in that conduct. I do not think a fine is an adequate penalty on the facts of this case. I consider that a suspension is appropriate.
  6. [29]
    Consistency in penalties imposed is desirable where like facts occur. I note that in Auld v Queensland Racing Ltd [16] a six-week period of disqualification was imposed, reduced from the original penalty of three months’ disqualification.  Mr Auld exchanged insults with a stable hand, Ms Saal. Ms Saal hit Mr Auld in the face with the end of a lead rope. Mr Auld struck Ms Saal in the face with his hand. In that case it was found that there was provocation which should be taken into account in determining the sanction for Mr Auld. I do not consider there to have been such serious provocation in this case, however provocation was present on the facts and I take that into account.
  7. [30]
    I accept that Mr Russell has a good disciplinary history. I accept on the basis of the character references from Mr Gatehouse and Mr Catton that Mr Russell is a man of good character and a reputable participant in the sport of greyhound racing. For these reasons and because of the provocation on Mr Crick’s part in standing very close to Mr Russell’s face, I think that the period of suspension should be reduced to three months’ suspension with one month wholly suspended for twelve months.

Order

  1. [31]
    I order that the internal review decision dated 1 November 2019 be set aside and that the following decision be substituted as the correct and preferable decision:
  1. Darren Russell breached Greyhounds Australasia Rule 86(q) on 6 September 2019.
  2. Darren Russell is suspended for three months with one month wholly suspended for twelve months, commencing one month after the date of this order.
  3. If Darren Russell engages in any conduct for which a contravention of Greyhounds Australasia Rule 86(q) is found and a penalty imposed, during the period of suspension, the period of suspension will immediately be re-activated and the suspension will be served in full.  The matters which are the subject of any new charge will be treated and dealt with as a separate proceeding.

Footnotes

[1]Exhibit 4, Stewards’ inquiry dated 3 October 2019 at p. 21.

[2]Exhibit 1.

[3]Exhibit 2.

[4]Exhibit 3.

[5]Exhibit 4.

[6]Exhibit 4 Stewards’ inquiry 6 September 2019 page 25 lines 45-47; page 26 lines 1-6.

[7]Ibid page 27 lines 48-49; page 28 lines 1-2.

[8]Ibid page 28 lines 6-8.

[9]Transcript of Stewards’ inquiry dated 6 September 2019 page 1 (supplied after the hearing).

[10]Ibid pages 2-4.

[11]Exhibit 4 Stewards’ inquiry 6 September 2019 page 36 line 17.

[12]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.

[13]Macquarie Dictionary (5th ed, 2009) ‘violent’.

[14]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.

[15]El-Issa v Racing Queensland Limited [2011] QCATA 280, [23].

[16][2013] QCAT 446.

Close

Editorial Notes

  • Published Case Name:

    Darren Russell v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Russell v Queensland Racing Integrity Commission

  • MNC:

    [2020] QCAT 329

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    02 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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